Archive for the ‘lawsuits against commenters’ Category

In an amicus brief, the Reporters Committee for Freedom of the Press is urging the courts in Virginia to apply a heightened standard of review before ordering that anonymous online commenters be outed.

(I won’t tell you the facts of the case, but the caption is Hadeed Carpet Cleaning, Inc., v. John Doe #1, et al., and the respondent on the other side of the discovery order is Yelp, Inc. So I’m betting you can figure it out.)

[T]he First Amendment restricts compulsory identification of anonymous speakers on the Internet. When faced with questions of compelled disclosure of anonymous online speakers, this Court must adopt a meaningful standard that requires a heightened showing of evidence of a valid claim and notice to the affected parties. This standard is essential to protect the interests in anonymous speech, which often serve the public good and contribute to a better understanding of public issues and controversies.

Joining the amicus brief were Washington Post, American Society of Newspaper Editors, and the Gannett Company, which owns USA Today.

Reality-television star Lisa Hochstein is suing a blog commenter for saying Hochstein “was an escort who also did soft porn in Vegas.”

Hochstein, who is an ensemble case member of Bravo’s The Real Housewives of Miami, says the defendant, Jessica Lederman, has been to Hochstein’s house. And that’s apparently what spurred her to sue.

“This person is an acquaintance we’ve invited in our home and who has smiled in our faces. She had no shame in saying these horrible things,” Hochstein told the Miami Herald. “The fact that she knows me and I’ve seen her in my home, well, it just sits the wrong way . I’m not going to go after every blogger and commenter out there. Trust me, I’ve been called way worse. I have thick skin as part of this whole show, but this really struck a chord.”

The legal claims appear to be intentional infliction of emotional distress and defamation with a prayer for $15,000.

“I didn’t want it to get out of hand and I’m all for freedom of speech, but when you know someone personally and act like you’re friendly with them and then go making an accusation like that, it’s a big deal. What have I done to her?”

Dan Turner has written an interesting piece in the Los Angeles Times about a lawsuit brought by a local Idaho political figure against an anonymous blog commenter.

Tina Jacobson, Chair of the Republican Central Committee of Kootenai County is pursuing the defamation suit against “Almostinnocentbystander,” who posted to the Huckleberries Online blog of Coeur d’Alene’s Spokesman-Review. The comment implied that Jacobson embezzled $10,000 from the Republican Party by stuffing it in her blouse.

Turner, a traditional journalist who has been with the L.A. Times editorial team since 2004, argues the case for non-traditional media participants. His argument implies that since anonymous web commenters ought to be taken less seriously than establishment journalists, they correspondingly ought to be deserving of more free-expression deference, not less:

“[O]ther cases seem to have clarified that Web readers don’t have the same 1st Amendment protections as journalists or the anonymous sources who provide information to journalists in the course of reporting. Yet if readers don’t have the same protections as news writers or sources, they also don’t have the same impact. Is it reasonable to claim you suffered damages because of something some nameless crank wrote about you on a blog, especially if you’re a public figure? Does the community at large take Web comments seriously enough that they could really damage a person’s reputation?”

To punctuate his argument, he dares the fourth wall.

“Readers: If you disagree, and want to inform me where I can stow my opinions, that’s OK. I promise not to sue.”

Jurors in Texas have handed a $13.8 million libel verdict to a married couple defamed on Topix.

Debra Cassens Weiss reports in the ABA Journal that Texas lawyer Mark Lesher and his wife Rhonda filed the suit against four defendants who posted anonymous comments accusing the couple of molestation, drug dealing, and perverted sexual behavior.

The Tarrant County jury apparently set a new record for online-libel verdicts. According to the Leshers, more than 25,000 defamatory posts forced Mark to shutter his law practice and Rhonda to close her beauty salon.

“We originally sued 178 John and Jane Does, and it all came down to two IP addresses,” she said. That led them to a married couple, Shannon and Gerald Coyel, and two employees of the couple, Charlie and Pat Doescher.

A few years ago, Shannon Coyel had accused the Leshers of sexually assaulting her. That led to a case and an acquittal in 2009.

Back in January, I blogged about the taxpayer-funded litigation campaign waged by the mayor of Aurora, Ontario. She got the town council to pony up funds to go after the Aurora Citizen blog and anonymous critics voicing opposition to Morris via the blog’s comments. As it turns out, the lawsuit didn’t help Morris’s political fortunes. Morris suffered a landslide loss in her bid for re-election. And then, the town council voted to de-fund her lawsuit – something that probably never should have been funded on the taxpayer dime in the first place. This summer, a judge rebuffed Morris’s attempt to get a court order to unmask the three anonymous contributors who were, apparently, the authors of the content Morris found most objectionable.

After that string of setbacks, Morris has now voluntarily discontinued her suit – meaning that she’s given up entirely on the litigation.

Thanks to Blog Law Blog reader Chris for sending me a note about this one.

The discontinuance is functionally a vindication for the defendants, who are blog proprietor-moderators William Hogg and Elizabeth Bishenden, contributor Richard Johnson, three anonymous commenters, and host WordPress.com.

It’s hard to tell what all exactly the material was that Morris contended was defamatory. Her suit claimed that material on the Aurora Citizen subject her to “ridicule, hatred and contempt.” But the what and why is not clear. A post from September 16, 2010 reprints a letter received from the town attorney demanding the removal of certain comments from the Aurora Citizen – a request the blog complied with, so we can’t see exactly what those comments were, and they seem to be about a different town official. Another post suggests that some material posted over the course of August 24, 2010 through October 2, 2010 was the basis of a defamation allegation at some point. So I’m guessing this and this might have annoyed her. But I can’t tell with any particularity what the offending language was.

Here’s what the Aurora Citizen had to say:

It was manifestly unfair that the defendants were put to the time and expense of legal fees at the hands of Ms. Morris, most especially in light of the fact that Ms. Morris used tax dollars to pursue them in what appeared to be a politically motivated attack intended to silence their efforts to hold her government accountable.

It is equally telling that Ms. Morris discontinued the litigation when she was called upon to fund it out of her own pocket rather than use taxpayer funds as initially intended. She was fully prepared to use town resources to support her private lawsuit, at the towns’ sole risk and expense to her sole potential gain, despite the fact that the Town’s Code of Conduct states clearly that “public office is not to be used for personal gain”.

While the defendants, Hogg and Johnson defended their principles with their own funds — Phyllis Morris did not.

Hopefully, there has been a lesson learned from this experience. Freedom of expression is a fundamental democratic right of all Canadians — but it is a right that will be attacked, and will need protection.

I’ve been thinking back over the last year, Blog Law Blog’s first year, and trying to figure out what broad lessons there are to be learned about blog law. The most striking thing to me, I think, is the tremendous number of altercations we’ve seen between local officials and bloggers.

Where do local officials get off thinking they should be able to silence online critics? What’s a bit puzzling is that the behavior exhibited by local officials toward the online press is something you would never see either (1) by federal or higher-level state politicians and officials, or (2) by local officials against the traditional media. Well, you might see it very rarely. But not with the frequency and abandon with which town politicos go after laptop-wielding gadflies.

So what accounts for the difference?

I think a big part of it is that local officials aren’t used to the heat. National politicians have always put up with vitriol. For them, the internet has perhaps added to the number of hecklers, but the phenomenon is not utterly new for elite officials.

But on the local level, blogs have propelled brickbats into a void. It’s all new for local officials. And the do not like it.

Much of the blog activity that leads to lawsuits is mean-spirited and nothing to cheer about. Nonetheless, you can’t deny that this is participatory democracy. I can’t help but think that when blogging comes to town hall, it is perhaps the greatest fulfillment of the vision the forefathers had for the First Amendment. This is the core within the core of free speech. I think Jefferson, Madison, and the rest would say this is exactly what democracy and freedom of press are all about.

That said, I get that it hurts. A big part of what drives local officials to get lawyered up is the anonymity blogs allow. People are mean anonymously in a way the would never be with their name attached. There’s no doubt about that.

Another part of the story is that the criticism is in print. No doubt local officials have always been subject to mean-spirited gossip. But gossip uttered on the air is less hurtful than font-rendered invective. It goes back to the traditional legal difference between slander and libel – that is, oral vs. written defamation. The common law’s distinction no doubt grows from an important difference in how we perceive the harmfulness of ephemeral speech versus inky text.

Here are posts from BLB where local officials use the law to attack blogs in 2010:

It’s kind of hard to tell what the allegations are because the complaint [pdf], filed by the Stevenson & Smith, P.C. law firm of Ogden, UT, is a bizarre mess.

For example, one defendant, WordPress.com’s parent, Automattic, is being sued on the theory that, well, uh, I just don’t know. WordPress.com is a blog host, and Xenophilia is hosted on WordPress.com. Those are the facts. Here is what is alleged.

9. Defendant Xenophilia runs a website known as WordPress. Wordpress provides free blog hosting for its users. One such user is the Xenophilia blog located at xenophilius.wordpress.com.

These attorneys don’t seem to understand much about blogs – nor did they bother to learn much before they filed the complaint. Clearly, they don’t seem to understand the difference between a blog host and a blog.

Nor, does it seem, do they understand the difference between a blogger and a commenter.

Here’s a passage I particularly like from paragraph 23:

Neither Complaintsboard.com, Arvoice.com or WordPress.xenophilia.com has revealed the contact information and identity of the bloggers, despite the fact that such information is not protected when the bloggers use the blog for illegible purposes.

I mean, that’s just funny. Can you imagine the law looking askance at blogs used for “illegible purposes”?

And you’ve got to wonder, if it’s illegible, how can it be defamatory?

(By the way, that’s the complaint’s original spelling of “Artvoice.com” as “Arvoice.com.”)

And there’re also other problems, of course, such as, Section 230, which I’m not sure the attorneys understand either.

Forbes blogger Kashmir Hill discusses model Liskula Cohen, business student Carla Franklin, and Tornoto constable Adam Josephs – all recipients of online abuse – in a post about unmasking anonymous bloggers and commenters: Civilizing the Internet, One Lawsuit at a Time (For Now).

She observes:

People can be meaner online — it’s easier to be harsh in a digital communication when you don’t have look into the faces of those you’re lashing out at. … When flame throwers are cloaked in anonymity, the “harsh” dial is often turned up a few notches.

Winemaker Charles Smith and K Vintners LLC has filed a libel suit against anonymous commenters to a post on wine blog The Gray Market Report. The post that pulled in the allegedly defamatory comments is Charles Smith is a wine cartoon. Really.

The Gray Market Report was not sued, nor the blogger W. Blake Gray, nor Google, the host via Blogger. Instead, it’s a suit targeting John Does 1-10. Google has been served with a subpoena to turn over identifying information.

The complained of comments accuse Charles Smith of being a “promoter” and “marketing-whiz” and not the winemaking brains in the operation. There’s also accusations of verbal harassment of employees.

The statements are good ones for exploring the issue of fact/opinion dichotomy in libel law. They are all somewhat close to the line, and you can bet it will be an issue as to whether the statements are factual assertions capable of defamatory meaning or unactionable expressions of opinion.